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ELLIS ROBINSON ET AL. v. WILLIAM
TINDILL ET AL.
(AC 43995)
Elgo, Cradle and Clark, Js.
Syllabus
The plaintiffs, who owned residential property adjacent to that of the defen-
dants, T and E, sought declaratory and injunctive relief and damages
for trespass resulting from T’s construction of a fence that encroached on
the plaintiffs’ property. The parties previously had constructed privacy
fences on their properties on opposite sides and within inches of a
chain-link fence that was located on a portion of the boundary line
between their backyards. T thereafter constructed an extension to the
defendants’ privacy fence and, without the plaintiffs’ permission,
removed portions of the chain-link fence. T also constructed a split rail
fence that extended the privacy fence along or near the boundary line.
A surveyor thereafter found that a portion of the split rail fence
encroached on the plaintiffs’ property. The defendants filed special
defenses alleging that they were entitled to establish a divisional fence,
pursuant to statute (§ 47-43), on the boundary of their property. The
defendants further claimed that § 47-43 permitted placement of the fence
on the plaintiffs’ property. The trial court granted the plaintiffs’ motion
for summary judgment as to liability, finding against the defendants on
the plaintiffs’ claim of trespass, and against T for conversion as to the
chain-link fence. The court concluded that a majority of the length of
the fences T constructed was not located on the dividing line of the
parties’ properties and, thus, could not be considered a divisional fence
pursuant to § 47-43. After a hearing in damages, the court granted the
plaintiffs injunctive relief and awarded them nominal damages for con-
version as to the chain-link fence and for trespass as to the split rail
fence. On appeal, the defendants claimed, inter alia, that the court
erred in finding them liable for trespass because the fence at issue was
compliant with § 47-43. Held:
1. The defendants could not prevail on their claim that the trial court improp-
erly found them liable for trespass, which was based on their assertion
that their privacy fence was a divisional fence pursuant to § 47-43 and
was within the permitted limit of intrusion on the plaintiffs’ property:
contrary to the defendants’ assertion, the clear and unambiguous lan-
guage of § 47-43 requires a divisional fence to be centered on the property
line at issue, the parties did not dispute that the defendants’ fence
was not centered on the property line, and the defendants failed to
demonstrate how any of the other statutes they cited pertaining to fences
undermined the plain language of § 47-43; moreover, this court found
unavailing the defendants’ assertion that the placement of their fence
did not constitute a trespass because the fence did not exceed the width
permitted by § 47-43 for materials used to construct a divisional fence,
as an interpretation of § 47-43 that allows a property owner to construct
a divisional fence on a neighbor’s property would render the centering
language in § 47-43 superfluous; furthermore, it was undisputed that the
split rail fence encroached on the plaintiffs’ property, and the middle
of the fence did not sit on the mutual boundary line of the parties’
properties.
2. This court declined to review the defendants’ unpreserved claim that the
trial court improperly found E liable for trespass because the split
rail fence was a fixture appurtenant to the property she owned, the
defendants having failed to argue to the trial court that the plaintiffs
did not properly raise or brief the issue of ‘‘trespass of ownership by
fixture’’; moreover, the two paragraphs of argument in the defendants’
opposition to the plaintiffs’ motion for summary judgment was devoid
of analysis or legal authority that was relevant to the bases on which
they challenged on appeal the trial court’s judgment as to E.
3. The trial court’s judgment finding T liable for conversion could not stand,
as the plaintiffs never pleaded conversion in their complaint or briefed it
in their motion for summary judgment; because the plaintiffs’ complaint
alleged that T’s conduct in dismantling portions of the chain-link fence
constituted trespass, the defendants were never given notice or afforded
an opportunity to defend a claim of conversion; accordingly, the judg-
ment was reversed as to the court’s finding that T was liable to the
plaintiffs for conversion.
Argued April 15—officially released October 12, 2021
Procedural History
Action, inter alia, to recover damages for trespass,
and for other relief, brought to the Superior Court in
the judicial district of New Haven and transferred to
the judicial district of Middlesex, where the court,
Domnarski, J., granted the plaintiffs’ motion for sum-
mary judgment as to liability; thereafter, following a
hearing in damages, the court, Frechette, J., rendered
judgment for the plaintiffs, from which the defendants
appealed to this court. Reversed in part; judgment
directed.
Michael A. Zizka, for the appellants (defendants).
Joshua C. Shulman, for the appellees (plaintiffs).
Opinion
CRADLE, J. This case arises from the erection of a
fence by the defendants, William Tindill (Tindill) and
Erika Tindill, between their property and the adjacent
property owned by the plaintiffs, Ellis Robinson and
Nicole Robinson. The defendants appeal from the judg-
ment of the trial court rendered in favor of the plaintiffs
after a hearing in damages and the court’s prior order
granting the plaintiffs’ motion for summary judgment
as to liability and finding both defendants liable for
trespass and Tindill liable for conversion. On appeal,
the defendants claim that the court erred (1) in finding
them liable for trespass because the fence at issue was
a statutorily compliant divisional fence pursuant to Gen-
eral Statutes § 47-43, (2) in finding Erika Tindill liable
for trespass, even though she played no role in erecting
the fence, and (3) in finding Tindill liable for conversion
because the plaintiffs failed to plead, or present any
evidence in support of, a claim for conversion. We
affirm in part and reverse in part the judgment of the
trial court.
The following undisputed facts, as set forth by the
court, and procedural history are relevant to our resolu-
tion of this appeal. The plaintiffs own property located
at 113 Glen View Terrace in New Haven. The defendants
reside at 119 Glen View Terrace. ‘‘The plaintiffs acquired
their property in 2003, and . . . Erika Tindill acquired
her property, [where she resides with Tindill], in 2004.
There is a chain-link fence located on a portion of the
mutual boundary line between the plaintiffs’ and the
defendants’ properties. This chain-link fence, which had
been installed prior to when the parties acquired their
respective premises, can be described as located
between the backyards of the two lots. Over the years,
the plaintiffs and the defendants each constructed their
own privacy fences on opposite sides of the chain-link
fence. The sides of these privacy fences were very close
to, meaning within inches of, the chain-link fence,
resulting in the chain-link fence being sandwiched
between the two closely built privacy fences.
‘‘On July 8, 2017 . . . Tindill commenced a fence-
building project. Between July 8 and 11, 2017, Tindill
constructed a six foot high, approximately thirty foot
long extension to his existing privacy fence. This exten-
sion made the [defendants’] entire privacy fence
approximately sixty feet long. The privacy fence, as
extended, runs along the mutual boundary line but is
located entirely on Erika Tindill’s property. To accom-
modate the post and panels for the extended privacy
fence, Tindill removed the end corner post, as well as
the supporting top metal rod, of the chain-link fence.’’
‘‘[T]he plaintiffs never gave permission to, or author-
ized, Tindill to remove the fence post and top rod. There
is no evidence that the removed fence parts have been
reinstalled or replaced.’’
‘‘Beginning on July 11, 2017, Tindill also constructed
a three and one-half [foot] high split rail fence. The split
rail fence extended from the privacy fence to a point
in the vicinity of the sidewalk alongside Glen View
Terrace. Thus, to summarize, from the undisputed facts,
it appears that Tindill constructed three fences, total,
along the mutual boundary line on three separate occa-
sions: (1) the original privacy fence, (2) the extension
to the privacy fence, and (3) the split rail fence. . . .
‘‘Tindill [averred that he] installed the split rail fence
‘along or near the [m]utual [b]oundary . . . .’ After Tin-
dill constructed the split rail fence, the plaintiffs hired
Michael D. Phipps, a licensed surveyor, to survey the
neighboring properties and officially establish the loca-
tion of the mutual boundary line. The survey map [that]
Phipps prepared, which both parties have submitted
along with their respective motions for summary judg-
ment, indicates that the mutual boundary line is 100
feet in length. . . . In an affidavit dated April 8, 2019,
Phipps stated that the split rail fence [that] Tindill con-
structed encroaches on the plaintiffs’ property. . . .
Although it does not appear that the split rail fence
encroaches on a large area of the plaintiffs’ property,
the defendants do not dispute that a ‘few inches’ of the
split rail fence posts may lie on the plaintiffs’ side of
the mutual boundary line. . . . The defendants have
not submitted their own professionally prepared sur-
vey, do not dispute Phipps’ survey and, in fact, also
rely on the survey in their efforts to prove their case.’’
(Citations omitted.) ‘‘It is undisputed that at least one
of the vertical posts of the split rail fence [that] Tindill
installed extends onto the plaintiffs’ property. There is
no evidence to establish that the plaintiffs gave the
defendants permission to install a fence post that would
be located on the plaintiffs’ property.’’
On May 9, 2018, the plaintiffs commenced this action
by way of a one count complaint, alleging that Tindill
destroyed the chain-link fence that had existed on the
boundary of the parties’ properties and constructed a
‘‘new, approximately six foot high wooden stockade
fence’’ in its place. The plaintiffs further alleged that
Tindill also constructed ‘‘an approximately three and
one-half foot wood rail fence’’ along another portion of
the parties’ property boundary. The plaintiffs alleged
that Erika Tindill is the owner of the property at 119
Glen View Terrace and that, ‘‘acting through . . . Tin-
dill, [she] caused the fence to be built such that it
encroaches on the land of [the] plaintiffs . . . .’’ The
plaintiffs sought a declaratory judgment establishing
the boundary line of the parties’ properties, an injunc-
tion requiring the defendants to remove their fence from
the plaintiffs’ land, and damages for trespass.
On July 12, 2018, the defendants filed an answer and
two special defenses to the plaintiffs’ complaint. In their
first special defense, the defendants alleged that they
were entitled to establish a divisional fence on the
boundary of their property pursuant to General Statutes
§§ 47-43 and 47-49, and, to the extent that it is located
on the plaintiffs’ property, ‘‘such placement is partial
and no greater than allowable pursuant to the aforesaid
statutes.’’ In their second special defense, the defen-
dants alleged that the plaintiffs had allowed the chain-
link fence ‘‘to deteriorate and to become a useless,
unsightly nuisance in violation of . . . § 47-43.’’ They
alleged that they were entitled to seek remedies for
such nuisance pursuant to General Statutes § 47-51,1
and that they were entitled to erect a divisional fence to
replace it pursuant to §§ 47-43 and 47-49. The plaintiffs
thereafter denied all of the allegations contained in the
defendants’ special defenses.
In April, 2019, both parties filed motions for summary
judgment, each arguing that they were entitled to judg-
ment as a matter of law. In support of their motions,
both parties filed memoranda of law, affidavits and
exhibits. Both parties represented to the court that the
essential facts underlying their claims were not in dis-
pute. Following a hearing on the parties’ motions for
summary judgment, the court, Domnarski, J., issued a
memorandum of decision filed October 8, 2019. The
court rendered summary judgment in favor of the plain-
tiffs as to liability only, against both defendants on
the plaintiffs’ claim of trespass, and against Tindill for
conversion as to the plaintiffs’ claim related to the
chain-link fence.
On February 20, 2020, the court, Frechette, J., held
a hearing in damages. On February 26, 2020, the court
issued a written order awarding ‘‘injunctive relief in
favor of the plaintiffs against the defendants as follows:
within thirty days of the date of this order, at their sole
expense, the defendants are to relocate the split rail
fence and fence posts as depicted in exhibit 2, so as
not to encroach on the plaintiffs’ property. The defen-
dants are to also repair any damages to the plaintiffs’
property and restore it to its natural condition.’’ The
court also awarded nominal damages to the plaintiffs
of $50 for ‘‘conversion of the chain-link fence,’’ and
nominal damages of $50 for trespass as to the split rail
fence. This appeal followed.
I
The defendants first claim that, because the fence at
issue was a divisional fence pursuant to § 47-43, the
trial court erred in finding them liable for trespass.. The
defendants argue that the court erred in concluding
that their fence was not a divisional fence because it
was not centered on the mutual boundary line. They
further contend that, although the fence was not cen-
tered on the property line, it was well within the limit
of intrusion onto the plaintiffs’ property that is permit-
ted by § 47-43. We are not persuaded.
In concluding that the defendants’ fence was not a
divisional fence under § 47-43, the trial court set forth
the following additional facts: ‘‘At some point in time,
Phipps . . . installed stakes in the ground, which Tin-
dill believed to be on the boundary line. The defendants
have submitted photographs that show the survey
stakes and the defendants’ privacy fence. It is clear from
one of the photographs that the defendants’ original
privacy fence, and the 2017 extension thereto, were
installed on the defendants’ side of the boundary line.
. . . [Thus] a majority of the length of the fences [that]
Tindill constructed were not located on the dividing
line of the two properties. The survey map shows that,
where the split rail fence begins, in the vicinity of the
privacy fence, it is located on the defendants’ side of
the line. As the fence travels toward the sidewalk and
the lot corner, however, it gradually approaches and
then enters onto the plaintiffs’ property. . . . [T]he
defendants have not contested Phipps’ statement in his
affidavit that a portion of the split rail fence is on the
plaintiffs’ property.2
‘‘In his affidavit, Tindill stated that he ‘constructed a
[split rail] fence along or near the [m]utual [b]oundary,
running from the extended privacy fence to Glen View
Terrace.’ . . . [Tindill] further state[d], ‘Before install-
ing the extension of the privacy fence and the [split rail]
fence, I measured the distance of the line of installation
from both the house on the Tindill [p]roperty and the
house on the Robinson [p]roperty to be sure that the
fence would be located on the [m]utual [b]oundary or
within the Tindill [p]roperty.’ . . . [T]he privacy fence
and its extension are on the defendants’ side of the
boundary. These privacy fences constitute approxi-
mately two-thirds of the length of the fences between
the two properties. It appears from the survey that only
a portion of the split rail fence is actually located on the
boundary line.’’ (Citations omitted; emphasis in original;
footnote added.)
The court further found: ‘‘[T]he mutual boundary line
was established by the original subdivision map
referred to on the subject survey and in . . . Erika
Tindill’s deed [to her property] . . . . Although the
mutual boundary line had been established, it appears
that Tindill did not accurately locate the boundary line
when he took his measurements. As a result, he did
not place all of the split rail fence on his side of the
boundary, as he did with the other fences [that] he built.
Furthermore, if there was an intention to construct a
divisional fence, the split rail fence and the privacy
fence should have been built on the established dividing
line for its entire length.’’ (Citation omitted.) The court
concluded: ‘‘Thus . . . because most of the total length
of the fences Tindill constructed is not on the dividing
line, the fences cannot be considered a ‘divisional fence’
within the meaning of § 47-43 or the related fence stat-
utes.’’3
On appeal, the defendants argue that the trial court
misinterpreted the language of § 47-43. Specifically, the
defendants challenge the court’s determination that
§ 47-43 requires that a divisional fence be centered on
the mutual boundary line. ‘‘The process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case, including the question of whether the language
does so apply. . . . When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
Furthermore, [t]he legislature is always presumed to
have created a harmonious and consistent body of law
. . . [so that] [i]n determining the meaning of a statute
. . . we look not only at the provision at issue, but also
to the broader statutory scheme to ensure the coher-
ency of our construction. . . . Because issues of statu-
tory construction raise questions of law, they are sub-
ject to plenary review on appeal.’’ (Citations omitted;
internal quotation marks omitted.) State v. Bemer,
Conn. , , A.3d (2021).
With the foregoing principles in mind, we begin with
the statutory language at issue in this case. Section 47-
43 provides in relevant part: ‘‘The proprietors of lands
shall make and maintain sufficient fences to secure
their particular fields. . . . Adjoining proprietors shall
each make and maintain half of a divisional fence, the
middle line of which shall be on the dividing line .
. . .’’4 (Emphasis added.) The clear and unambiguous
language of § 47-43 requires a divisional fence to be
centered on the property line at issue. Here, it is undis-
puted that it is not.5
Our case law, although scant, has held that a fence
that does not sit on the mutual boundary line is not a
divisional fence. See Grosby v. Harper, 4 Conn. Cir.
196, 199, 228 A.2d 563 (hedge not divisional fence
because only portion of it was centered on property line
and remainder was on defendant’s property; divisional
fence does not ‘‘apply to such fences as may be erected
by each proprietor on his own land, though near and
parallel to the boundary line’’), cert. denied, 154 Conn.
718, 222 A.2d 810 (1966); Hillgen v. Printz-Kopelson,
Docket No. CV-XX-XXXXXXX-S, 2001 WL 589106, *3 (Conn.
Super. May 11, 2001) (fence that ran only short distance
along part of boundary line was not divisional fence).
Despite the plain and unambiguous language of § 47-
43, the defendants nevertheless contend that the fact
that the fence Tindill erected did not sit on the boundary
line was not fatal to their claim that the fence was a
divisional fence under § 47-43. The defendants argue
that the court improperly interpreted the language of
§ 47-43, specifically, the language that provides that the
middle line of a divisional fence ‘‘shall be on the dividing
line,’’ in that it ‘‘focused solely on that language without
examining its context, either within § 47-43 or within
the entirety of chapter 823 [of the General Statutes].’’6
Specifically, the defendants argue that ‘‘[t]he history
and context of chapter 823 show that its intent was not
to require a precise location for a divisional fence but
to establish a joint duty to erect such fences, with the
burdens to be equitably shared by abutting landown-
ers.’’ Aside from setting forth the language of other
statutes pertaining to the erection or maintenance of
fences, the defendants have failed to demonstrate how
any of the other statutes to which they cite undermine
the plain language of § 47-43. The requirements pre-
scribed by § 47-43 governing the location and manner
of erecting divisional fences do not frustrate or conflict
with the goal of the statutory scheme, as argued by
the defendants, to ensure that such fences are erected.
More specifically, there is nothing in those other stat-
utes that excuses noncompliance with the requirements
of § 47-43 or supports the defendants’ argument that a
fence that is not centered on the property line and is
‘‘merely misaligned’’ may be considered a divisional
fence. Indeed, as the defendants state in their brief to
this court, ‘‘[t]he remaining provisions of . . . chapter
[823] are merely supportive; they specify how the goal
of erecting such a [divisional] fence may be achieved
in a variety of different circumstances.’’7
The defendants further contend that, because the
goal of § 47-43, and, the entirety of chapter 823, is to
assure that a divisional fence will be constructed, ‘‘it
makes little sense to conclude that the mere misalign-
ment of a fence should be viewed as a trespass or
should warrant a court[’s] ordering its removal, espe-
cially where, as here, the ‘intrusive’ portion of the fence
is well within the space that a properly aligned fence
would have occupied on the plaintiffs’ property.’’ In
asserting this argument, the defendants are referring to
the portion of § 47-43 that contemplates the dimen-
sional qualities of the various materials of which a divi-
sional fence may be constructed. Section 47-43 provides
that a divisional fence, ‘‘the middle of which shall be
on the dividing line . . . shall not exceed in width, if
a straight wood fence or hedge fence, two feet; if a
brick or stone fence, three feet; if a crooked rail fence,
six feet; and, if a ditch, eight feet, not including the
bank, which shall be on the land of the maker.’’ The
defendants rely on this language to assert that, because
their fence did not exceed the width permitted by § 47-
43 and did not encroach on the plaintiffs’ property for
more than one-half of that width, the placement of their
fence on the plaintiffs’ property did not constitute a
trespass. The fatal flaw in the defendants’ argument is
that the middle of their fence did not sit on the dividing
property line as required by § 47-43. To interpret § 47-
43 to allow a property owner to construct a divisional
fence on a neighbor’s property would render the center-
ing language of the statute superfluous.8
The defendants repeatedly have acknowledged that,
in constructing the fences in July, 2017, Tindill set out
to extend their privacy fence. The trial court found, and
it is undisputed, that neither the original privacy fence
nor the extended privacy fence erected by the defen-
dants were located on the mutual boundary line. They
were both located wholly within the defendants’ prop-
erty. The split rail fence is on the defendants’ property
where it meets the second installment of the defendants’
privacy fence but, then, as it approaches the road,
crosses the property line and encroaches on the plain-
tiffs’ property. Because the middle of the fence does
not sit on the mutual boundary line, the trial court did
not err in concluding that it was not a divisional fence.
II
The defendants also contend that the trial court erred
in finding Erika Tindill liable for trespass. In addressing
the plaintiffs’ claim against Erika Tindill, and rejecting
the defendants’ argument that she cannot be liable for
trespass because she did not personally install or direct
the installation of the fence that encroached on the
plaintiffs’ property, the trial court found that ‘‘the split
rail fence at issue is a fixture that is appurtenant to the
real estate Erika Tindill owns. Consequently, she is the
owner of the fence, including those portions of the
fence that trespass [on] the plaintiffs’ property. As the
owner of the property that continues to be a trespass
on the plaintiffs’ property, she, too, is liable to the plain-
tiffs for the trespass.’’ The defendants argue on appeal
that ‘‘[t]he issue of ‘trespass by ownership of a fixture’
was not properly raised or briefed and should have been
deemed abandoned.’’9 Because the defendants failed to
present this argument to the trial court, which, in turn,
did not address it, it was not properly preserved for
our review.
‘‘We have repeatedly held that this court will not
consider claimed errors on the part of the trial court
unless it appears on the record that the question was
distinctly raised at trial and was ruled upon and decided
by the court adversely to the appellant’s claim. . . .
[T]o review [a] claim, which has been articulated for
the first time on appeal and not before the trial court,
would result in a trial by ambuscade of the trial judge.’’
(Citation omitted; internal quotation marks omitted.)
Noonan v. Noonan, 122 Conn. App. 184, 190, 998 A.2d
231, cert. denied, 298 Conn. 928, 5 A.3d 490 (2010). It
is a well settled principle that ‘‘[a]nalysis, rather than
mere abstract assertion, is required in order to avoid
abandoning an issue by failure to brief the issue prop-
erly. . . . [When] a claim is asserted . . . but there-
after receives only cursory attention in the brief without
substantive discussion or citation of authorities, it is
deemed to be abandoned.’’ (Internal quotation marks
omitted.) Burton v. Dept. of Environmental Protection,
337 Conn. 781, 803, 256 A.3d 655 (2021).
In their memorandum of law in support of their objec-
tion to the plaintiffs’ motion for summary judgment,
the defendants argued that the plaintiffs ‘‘have offered
no proof whatsoever that Erika Tindill approved, con-
sented to, or otherwise had any influence whatsoever
over [Tindill’s] actions’’ and, thus, ‘‘cannot claim that
. . . Tindill was acting as [Erika] Tindill’s agent,’’ and
‘‘[t]hat is . . . the sole allegation they made against
[Erika] Tindill in their complaint.’’ The defendants fur-
ther argued: ‘‘Apparently recognizing their failure in this
regard, the plaintiffs have attempted to shift their legal
theory, claiming that [Erika] Tindill is somehow liable
as the owner of a ‘fixture’ that is partially located on her
property. Unsurprisingly, they have not cited a single
precedent to back up this frivolous—and previously
unpleaded—argument.’’10 The defendants then argued
that a trespass must be intentional and that, ‘‘even if
. . . Tindill could reasonably be said to have ‘tres-
passed’ by constructing a split rail fence partially on
[the] plaintiffs’ side of the mutual boundary, but well
within the parameters allowed by . . . § 47-43, there
can be no claim against [Erika] Tindill absent evidence
of her intent.’’ (Emphasis omitted.)
The defendants now contend on appeal that, because
the plaintiffs failed to assert this theory of ‘‘trespass by
ownership of a fixture’’ in their complaint, the trial
court erred in finding Erika Tindill liable on that basis.
Although the defendants mentioned that this theory of
liability was ‘‘previously unpleaded’’ by the plaintiffs
and that the sole allegation against Erika Tindill was
based on an allegation that she acted through Tindill,
they did not distinctly argue to the trial court that it
could not find Erika Tindill liable on this basis because
the plaintiffs failed to plead it in their complaint. The
defendants, likewise, provided no legal authority or
analysis, pertaining to the interpretation or sufficiency
of pleadings, to the trial court for its consideration of
this contention. Consequently, the trial court did not
address any alleged inadequacies in the plaintiffs’ com-
plaint.
The defendants also claim that ‘‘[t]he plaintiffs’ failure
to support [their] new theory with any authority should
also have foreclosed any review by the trial court.’’ The
defendants did not argue, as they do now, that the trial
court was precluded from reviewing the plaintiffs’ claim
because the plaintiffs had failed to provide any legal
authority in support of it. Although the defendants
argued, in a single sentence, that the plaintiffs had not
cited any legal authority to support their claims against
Erika Tindill, they did not argue that the plaintiffs’ fail-
ure to do so precluded the trial court from reviewing the
claim, nor did they cite any legal authority themselves
in support of this notion.
In sum, in opposing summary judgment as to the
plaintiffs’ claim that Erika Tindill was liable for trespass
because she owned the property to which the fence
that encroached on the plaintiffs’ property was an
appurtenant fixture, the defendants set forth two para-
graphs of argument, which was devoid of analysis or
legal authority that is relevant to the bases on which
the defendants now challenge the judgment of the trial
court as to Erika Tindill. Accordingly, because the
defendants did not properly raise these arguments to
the trial court, we decline to review them.11
III
The defendants also claim that the trial court erred
in finding Tindill liable, and awarding the plaintiffs mon-
etary damages, for conversion. They contend that the
court erred in finding Tindill liable for conversion
because the plaintiffs never pleaded conversion in their
complaint or briefed it in their motion for summary
judgment. We agree.
In their complaint, the plaintiffs alleged: ‘‘On or about
July 9, 2017 . . . Tindill destroyed a chain-link fence
along a portion of the boundary between the premises
known as 113 Glen View Terrace and the premises
known as 119 Glen View Terrace, New Haven, Connecti-
cut. . . . Tindill constructed a new, approximately six
foot high wooden stockade fence in place of [the] plain-
tiff[s’] chain-link fence that had been in place for more
than a decade.’’ The plaintiffs further alleged that Tindill
‘‘destroyed property of [the] plaintiffs, i.e., the chain-
link fence.’’
In addressing the plaintiffs’ claim regarding the chain-
link fence, the trial court first noted that it was undis-
puted that Tindill removed the end corner post and top
supporting metal rod of the chain-link fence and that
both parties considered the chain-link fence to be on
or near the mutual boundary line of their properties.
The court determined that, ‘‘[b]ecause the chain-link
fence is located on the mutual boundary line of the
parties’ properties, the chain-link fence is an appurte-
nant fixture attached to both properties. Thus, the own-
ers of the adjoining lots are joint owners of the fence
located on the mutual boundary line, and each had an
ownership interest in the parts that Tindill removed.’’
The court reasoned: ‘‘It is undisputed that the plaintiffs
never gave permission to, or authorized, Tindill to
remove the fence post and top rod. There is no evidence
to establish that the removed fence parts have been
reinstalled or replaced. As stated [previously], the plain-
tiffs had an ownership interest in the subject fence parts.
Because Tindill has deprived the plaintiffs of their own-
ership interest in those fence parts by removing them
without permission, he is liable to the plaintiffs for
those fence parts.’’ On that basis, the court found Tindill
liable for conversion.
The defendants claim on appeal that the trial court
erred in finding Tindill liable for conversion because
the plaintiffs did not allege conversion in their com-
plaint. ‘‘The tort of [c]onversion occurs when one, with-
out authorization, assumes and exercises ownership
over property belonging to another, to the exclusion
of the owner’s rights.’’ (Emphasis in original; internal
quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-
Tronics, Inc., 255 Conn. 20, 43–44, 761 A.2d 1268 (2000).
‘‘To establish a prima facie case of conversion, the plain-
tiff had to demonstrate that (1) the material at issue
belonged to the plaintiff, (2) that the defendants deprived
the plaintiff of that material for an indefinite period of
time, (3) that the defendants’ conduct was unauthorized
and (4) that the defendants’ conduct harmed the plain-
tiff.’’ Stewart v. King, 121 Conn. App. 64, 74 n.4, 994
A.2d 308 (2010).
The plaintiffs contend that, although they did not
expressly plead conversion in their complaint, the alle-
gations contained therein may be liberally construed
as sounding in conversion. ‘‘[T]he interpretation of
pleadings is always a question of law for the court. . . .
The modern trend, which is followed in Connecticut,
is to construe pleadings broadly and realistically, rather
than narrowly and technically. . . . Although essential
allegations may not be supplied by conjecture or remote
implication . . . the complaint must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.
. . . As long as the pleadings provide sufficient notice
of the facts claimed and the issues to be tried and do
not surprise or prejudice the opposing party, we will
not conclude that the complaint is insufficient to allow
recovery.’’ (Citations omitted; internal quotation marks
omitted.) Travelers Ins. Co. v. Namerow, 261 Conn.
784, 795, 807 A.2d 467 (2002).
Here, although the plaintiffs alleged that Tindill
destroyed their property when he dismantled portions
of the chain-link fence, the plaintiffs’ complaint alleges
that Tindill’s conduct constituted a trespass and sought
damages only for trespass. At no time, either in their
complaint or motion for summary judgment, did the
plaintiffs allege that Tindill’s conduct constituted con-
version. In fact, in their memorandum of law in support
of their motion for summary judgment, the plaintiffs
argued that Tindill ‘‘committed a trespass’’ when he
removed portions of the chain-link fence. Because the
plaintiffs’ claim pertaining to the chain-link fence was
limited to an alleged trespass by Tindill, the defendants
were never given notice of or afforded an opportunity
to defend a claim of conversion.12 Accordingly, the trial
court’s judgment finding Tindill liable for conversion
cannot stand.
The judgment is reversed with respect to the determi-
nation that William Tindill is liable for conversion and
the case is remanded with direction to vacate that find-
ing; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Despite this allegation, the defendants did not actually file a counterclaim
alleging nuisance.
2
In their memorandum of law in support of their objection to the plaintiffs’
motion for summary judgment, the defendants stated: ‘‘For the purposes of
this case, the defendants are not contesting the accuracy of the plaintiffs’
survey. That survey shows that the fences constructed by . . . Tindill lie
along or within inches of the mutual property boundary.’’
3
The defendants also claim that the trial court erred in finding that ‘‘the
defendants’ fence(s) cannot qualify as a divisional fence because a split rail
fence is not one of the types of ‘city’ fences listed in [§ 47-43].’’ In light of
our conclusion that the court correctly determined that the defendants’
fence was not a divisional fence because it did not sit on the center of the
mutual boundary line, we need not address this claim.
4
Section 47-43 also describes the types of fences that constitute divisional
fences: ‘‘Within cities and adjacent to house lots, a tight board fence four
and one-half feet high, an open picket fence four feet high, the opening
between pickets not to exceed four inches, or a slat rail fence four feet
high, the opening between slats not to exceed six inches, the lower slat not
over six inches from the ground, a fence not less than four feet high of
chain link galvanized wire not smaller than number nine gauge supported
upon galvanized tubular steel posts set in concrete, all end and corner posts
to be suitably braced, and all to be substantially erected, or any other fence
which in the judgment of the selectmen or other officials charged with the
duty of fence viewers is equal thereto, shall be a sufficient fence; in places
outside of incorporated cities, a rail fence four and one-half feet high, a
stone wall four feet high, suitably erected, a wire fence consisting of four
strands not more than twelve inches apart, stretched tightly, the lower strand
not more than twelve inches and the upper strand not less than four feet
from the ground, with good substantial posts not more than sixteen feet
apart, and any other fence which in the judgment of the selectmen is equal
to such a rail fence, shall be a sufficient fence.’’ General Statutes § 47-43.
5
In paragraph 11 of Phipps’ affidavit, he indicated that ‘‘[t]he 3.5 foot
wood rail fence encroaches on the [plaintiffs’] property.’’ In paragraph 13,
Phipps indicated that ‘‘[t]he center of the 3.5 foot wood rail fence is not on
the mutual boundary line for the entirety, or even the majority, of its length.’’
As the plaintiffs correctly describe, the fence here at issue does not sit on
the center of the mutual boundary line; it is a ‘‘diagonal fence that intersects
with the boundary line.’’
6
Chapter 823 of the General Statutes is titled: ‘‘Fences.’’
7
Moreover, the defendants’ argument is belied by the plain and unambigu-
ous language of § 47-43. Although we read each statute in the context of
the entirety of the statutory scheme, it is not the prerogative of this court
to ignore the plain language set forth in the statute.
8
The defendants also argue that the plaintiffs failed to establish a prima
facie claim of trespass because they failed to prove that the trespass was
intentional or that it caused direct injury. Because these arguments were
neither raised before the trial court; see Guiliano v. Jefferson Radiology,
P.C., 206 Conn. App. 603, 622, A.3d (2021); nor briefed beyond a
mere mention in the defendants’ brief to this court; see State v. Buhl, 321
Conn. 688, 724, 138 A.3d 868 (2016); we decline to review them.
The defendants additionally contend that, because § 47-43 provides for
various permissible intrusions on each property owner’s land, the court
erred in finding a trespass because the plaintiffs did not have exclusive
possession of the land on which the fence was placed. As explained herein,
the plain language of § 47-43 requires a divisional fence to be centered on
the boundary line of the properties at issue, and the language of the statute
that pertains to the overhang of the fence contemplates the varying dimen-
sional widths, which are based on the materials used to construct the fence.
That language does not allow, as the defendants argue, a divisional fence
to be constructed exclusively on one of the properties that it is purporting
to divide. There is nothing in the language of the statute that supports the
defendants’ argument that § 47-43 divests a property owner of the exclusive
ownership of his or her land, and the defendants have provided no legal
support for this argument.
9
The defendants also claim that, ‘‘[e]ven if the issue of ‘trespass by owner-
ship of a fixture’ had been properly raised, the trial court’s decision was
erroneous as a matter of law.’’ In so arguing, the defendants appear to assert
that, once the fence was erected by Tindill on the plaintiffs’ property, the
fence belonged to the plaintiffs and, therefore, could not have constituted
a trespass by the defendants. We decline to address this baseless claim.
10
In their complaint, the plaintiffs alleged that Erika Tindill is the owner
of the property at which she resides with Tindill. The plaintiffs further
alleged that, ‘‘acting through . . . Tindill, [she] caused the fence to be built
such that it encroaches on the land of [the] plaintiffs and is claiming for a
boundary line a line that is not the true line.’’ In their memorandum of law
in support of their motion for summary judgment, the plaintiffs argued as
to Erika Tindill: ‘‘Fences are fixtures: Our Supreme Court has long held that
fences are fixtures to real property. . . . Erika Tindill is the record owner
of the [defendants’] property, of which the fences are fixtures.’’ (Citations
omitted.) On that basis, the plaintiffs argued: ‘‘Even if the defendants will
not admit that . . . Erika Tindill allowed or permitted the actions [that]
. . . Tindill claims to have individually taken, she cannot escape the reality
that a fixture on her property (split rail fence) encroaches on [the plaintiffs’]
property. It does not matter if . . . Erika Tindill took any action to construct
the fences herself. She owns and possesses the [defendants’] property, and
a fixture on her property encroaches on the [plaintiffs’] property.’’
11
Moreover, this court has observed that, ‘‘[w]hile the lack of an appro-
priate pleading cannot be ignored, neither can it be ignored that there is
no element of surprise to the defendant—at all times, the defendant has
been on notice that this was an issue in the case, even if not properly pleaded
. . . .’’ (Internal quotation marks omitted.) Manzo-Ill v. Schoonmaker, 188
Conn. App. 343, 349 n.7, 204 A.3d 1207, cert. denied, 331 Conn. 925, 207
A.3d 27 (2019). Here, the defendants had adequate notice of the plaintiffs’
theory of liability as to Erika Tindill and were afforded ample opportunity
to address it.
12
We note the contrast between the conversion claim, which was men-
tioned for the first time in the trial court’s memorandum of decision, and
the claim that Erika Tindill was liable for trespass by virtue of her status
as the owner of the property to which the fence was an appurtenant fixture,
which was briefed and argued by the parties during the summary judgment
proceedings.